Shielded: How the Police Became Untouchable | Crooked Media
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March 13, 2023
Strict Scrutiny
Shielded: How the Police Became Untouchable

In This Episode

First things first: WE WON AN AMBIE!  Leah, Kate, and Melissa gather to raise a glass and celebrate this huge honor. Then, Kate and Melissa talk with Joanna Schwartz about her new book, Shielded: How the Police Became Untouchable. Plus, a quick overview of what we expect from the Supreme Court before it ends its term in late June.

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Leah Litman [AD]


Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.


Leah Litman Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Leah Litman.


Melissa Murray I’m Melissa Murray.


Kate Shaw And I’m Kate Shaw.


Melissa Murray And today we are bringing you something a little different. First, we wanted to pull back the curtain a little and express our profound appreciation for the Podcast Academy’s recognition of the podcast with an Amby Award. That’s right, listeners. We are now not just a podcast about the Supreme Court and the legal culture that surrounds it. We are an award winning podcast about the Supreme Court and the legal culture that surrounds it. And according to some commentators, we are also intellectually supple and we’re going to be leaning into that. So prepare yourselves. We also wanted to pause about halfway through the Supreme Court’s term to give you a little preview of what we’re watching as the court hurtles toward the end of term. This is the time when we’re always doing emergency episodes and bringing our hands and tearing out our hair. And we just wanted to give you a preview of what that’s going to look like, too.


Leah Litman And not to be, like too scary. But Melody, our producer, has planned a cruise, and the last time she was on a cruise on a boat was when the Dobbs leak happened. So I just don’t know.


Melissa Murray Good planning Melody.


Leah Litman What that has in store for us this go round.


Kate Shaw Oh, no. Yeah. So, I mean, whether or not it all goes down while Melody is at sea, it is going to be an incredibly dramatic and affirming.


Leah Litman Take to the sea!


Melissa Murray Ahoy! Ahoy Melody! SOS


Kate Shaw Okay, so we are going to just for any new listeners out there, give you just a quick overview or refresher for existing listeners of what we are still waiting for the court to unleash on us before the end of the term. And then the bulk of today’s episode is actually going to be a conversation with Professor Joanna Schwartz, who teaches at UCLA and who is the author of a fantastic new book titled Shielded How the Police Became Untouchable. And for new listeners, and as a reminder to regular listeners, whenever the court is between oral argument sessions, which is usually just a week gap, we will sometimes bring you episodes that are court adjacent or do deeper dives on some of the issues that come up on the podcast, but aren’t so tightly tied to the cases that the court is hearing and deciding. So our conversation with Joanna is one of those episodes. It’s an in-depth conversation about the many ways that the law operates to shield police officers from accountability for wrongdoing. Then we will return to our regular programing next week when the court is hearing cases again.


Melissa Murray All right. So let’s first pull back and talk about the Podcast Academy and our new Amby for Best Politics, an opinion podcast. I mean, I feel like I’m having a Halle Berry moment. Like where you’re just like, oh my God. Oh, my God. And then Eric Benet stands up and leads the slow clap for you. Like, I feel like that’s that’s the moment we’re having. Yes?


Leah Litman I kind of want Jamie Lee Curtis to, like, jump up and start screaming and like, maybe kiss one of us because she’s so excited. Like, that’s also the image that I have in mind.


Melissa Murray I love this.


Kate Shaw We were not able to go, we should say none of us were able to go in person. There is like a very glitzy, actual awards ceremony. It was hosted by Larry Wilmore and none of us could make it. But they offered the kind of zoom participation.


Leah Litman Because we have other jobs too. It’s just. It’s like it’s kind of wild.


Kate Shaw I know, I know. And the ceremony was like at 9:30 at night. Leah is long asleep.


Leah Litman Was in bed.


Kate Shaw By 9:30. Melissa had a conflict. So I was the representative. And I think the other reason actually I was the representative is because we have 30 seconds. The winners have 30 seconds for speech. And I can, the words per minute ratio, I can typically get in the 30 seconds. Its pretty high. Um. So. But it looked.


Melissa Murray You were made for this. You were made for this.


Kate Shaw I was. Um. But just via the zoom, it actually looked like an incredibly fun ceremony. And if we’re ever nominated again, I think somebody should go in person.


Leah Litman Yeah, I just wanted to briefly say thank you to a bunch of different people who have like helped make this podcast and keep it going. You know, one is our producer, Melody Rowell, who we kind of asked to do this on a kind of budget basis initially while we were furiously making merch on our own time in order to fund the podcast and like trying to come up with different fundraising drives.


Kate Shaw And now look how far we’ve come. She’s having cocktails on the Lito deck. So


Leah Litman Yes she is! Um. Also Dahlia Lithwick, who has been a role model for the kind of public commentary and engagement with the court, you know, by women that I’ve looked up to for a really long time and continues to be just incredible. Crooked Media for, you know, we kind of approached them when we were trying to figure out how to make the podcast sustainable.


Melissa Murray Hey, do you want to buy us? We’re for sale.


Leah Litman And they were really wonderful throughout that process and have been very supportive as they’ve taken us under their wing and given us a lot of opportunities. And I’m incredibly grateful for all of that. Obviously you two, Kate and Melissa. I feel like we have become, I don’t know, like kind of a mind meld in some ways, but just like a really wonderful supportive group to, you know, share with people and support one another. And then obviously our listeners who make this so much fun, I can’t describe how exciting and meaningful it is. You know, when I go to law schools or something like that, to hear from young law students who say they’re listening to the show and the show means something to them, and it is really just incredible. So thank you, everyone for listening and thank you for supporting the show.


Kate Shaw And I’ll just pile on a little bit. Biggest thanks to Melody and then to both you, Leah, and to Melissa. Leah for having the idea to do this in the first place and for sort of being the architect from the outset and just kind of the spine and bones of the operation throughout. And Melissa, the two of you are just like amazing coconspirators and it’s cathartic and fun and stimulating to get to do this, even in these enraging times as the Supreme Court just tears everything down. It’s been, I think, a really crucial outlet for us. And so I feel grateful to get to do it and grateful for the incredible stable of guests that we have convinced to come on the show. Over the course of the three plus years we have been doing it, like we have literally had many of our legal heroes and heroes on the show. Sherrilyn Ifill We’ve been lucky enough to have on Dahlia. Rebecca Traister. Senator Sheldon Whitehouse just naming regular.


Leah Litman Chuck Goodwin.


Kate Shaw It’s just Chase Strangio like the list is not in any way an exhaustive list, but we have had incredible people and we will continue to invite on and try to amplify the voices of the people we think are doing some of the most crucial legal work. And so we feel lucky to get to do that. And the last thing is to hear from listeners who enjoy what we are doing is actually such a wonderful corrective to the many people who offer unsolicited advice about things like weird. They tried it. They diagnosed skin conditions based on like Twitter photos. They suggest plastic surgery. They obviously complain about our voices and our jokes. And so that is offset to a degree.


Leah Litman They call me a misandrist and ask why I hate men so much. Like all all of the things they said.


Kate Shaw Yep, yep. But we’re still lucky to do all this.


Melissa Murray Yes, I will. Plus one, all of that. But because I don’t want to be the Ben Affleck of the Ambies, I am going to say we are also incredibly grateful to our partners and families for being so supportive of this endeavor. I don’t know how many times my husband has been like, “Are you doing edits?” because I have Strict Scrutiny on blast and I am trying to listen to it as we edit it to go out. So thank you for your forbearance and to everyone who is listening, we are so grateful. I want to shout out Libby from Duke Law School, whom I met last week when I was down there, an amazing superfan in our No Law just Vibes shirt um super supportive of the pod. We really appreciate all of the listeners who show up for us every week and are so supportive in every way. I also want to thank our amazing guests. Again, not an exhaustive list, but one of the things we really wanted to do was to diversify the range of individuals who are understood as experts on the court. And I think we’ve really begun to sort of make a breach in that. I also want to shout out the many women advocates that we highlight week after week and to make sure that you all know how great their work is. And Kate and I, in the early days, we were incredibly indebted to Jo Rivera and the NYU tech team down in the studio who made us sound so great until the pandemic came along and forced us to actually get teched up and learn how to do this at home. But for the brief time that we did it in the studio, Joe and his team were absolutely fantastic and we’re so grateful to them. And of course, no Amby Award acceptance speech would be complete without acknowledging the Wind Beneath Our Wings, our fanboy and inspiration week after week after week. He really is the reason we come back to the microphone every single time. And that’s Samuel Alito. And so you sir, with your dewy skin and your withdrawing of fundamental rights. You sir fuel our rage and keep us going. And for that, we thank you.


Leah Litman Sam Alito, at all of our cervixes. So there we go. So as promised, we said we would look ahead to what we’re watching for as the term progresses toward the bitter end. Obviously, there are some cases we are waiting to be decided. Last episode, we talked about the student debt relief challenges. If you’re new to the podcast, definitely check that out. It’s a deep dive on the oral arguments in the case in which a majority of the. Supreme Court justices could, and I think in our view, likely will block the president from canceling student debt. And some of the themes that are raised in that case come up in other cases that the court has yet to decide, like, do Democratic presidents get to be president? Like, do they possess the full scope of executive power or is it just Republican presidents in whom the executive power, all of it is vested.


Melissa Murray Wait, wait. Are you asking, does the unitary executive theory apply to Democrats? I don’t think it does


Leah Litman I  was.


Melissa Murray I don’t think it does.


Leah Litman Okay, well. Well, this term will provide us some additional.


Melissa Murray Confirm.


Leah Litman Right.


Melissa Murray Can confirm.


Leah Litman Yeah. This Wolf definitely comes as a wolf. Sorry, I can’t help parodying the lines from Justice Scalia’s. Unitary executive dissent while talking about how that theory obviously doesn’t apply to Democratic presidents. Other themes like is it enough to have standing, that is to get into federal court because you can show you’re injured if you are simply a Republican who has a sad about some Democratic policy. This was an issue not just in the student debt relief challenges, but also in the challenges to the Indian Child Welfare Act in 303 Creative versus Elenis, the challenge to Colorado’s anti-discrimination protections for LGBTQ individuals.


Melissa Murray I would also say, Students for Fair Admissions versus Harvard and USC like how do we know that race was the reason you didn’t get on to college?


Leah Litman Because they’re Becky, with the not so bad grades? I don’t know.


Melissa Murray I mean, I’m just like parroting Justice Jackson here.


Kate Shaw Yeah, I know. The court has long been so forgiving in in any of these cases that are challenges to race conscious admissions programs, it will basically let anybody who is disgruntled or unhappy walk into court. And that’s not ordinarily the case. The court is very strict in policing standing in other contexts, but I think that’s absolutely right here. So, yeah, I mean, I think there the court is going to say these rules that law students learn that are about limiting court’s ability to decide cases unless there’s a live controversy in front of them, are going to be exposed to be, you know, optional discretionary, vibey, maybe. Yeah. And then substantively, you know, we have cases that I don’t think it’s remotely hyperbolic to suggest that these cases really are about the future of multiracial democracy and about the, you know, mechanisms of democracy. So cases like Students for Fair Admissions about the future of, you know, the permissibility of race conscious admissions programs, about the future viability of the Voting Rights Act, about the constitutionality of the Indian Child Welfare Act, about, you know, whether state legislatures can just undo democracy, basically more versus harbor. The list is really long in terms of the number of cases that are about what kind of a democracy we have, what the court’s relationship to law, democracy and society is and will be. So, you know, kind of whatever issues you are most passionate about, the court is going to decide a case on those issues this term and probably is about to take a buzzsaw to many of our most cherished values with respect to all of these issues.


Leah Litman I mean, there’s the big labor law case, Glacier Northwest that we did a deep dive on. There is a environmental case about the scope and reach of the Clean Water Act and protections for safe drinking water. There is a case about the future of anti-discrimination protections for the LGBTQ community. 303 Creative, you know, as we are seeing just absolutely escalating horrific attacks against the trans community in particular. There are so many cases about whether our rights can be enforced. I won’t go into detail about those just because we have other episodes about them, but really just it’s a big one.


Melissa Murray Well, it’s a big one. Coming on the heels of what was already a barnburner of an October term 2021, when the court decided a range of cases. And, you know, most people were talking principally about Dobbs versus Jackson Women’s Health Organization and the overruling of Roe versus Wade in Casey. But there was also Bruen and Kennedy and a million other cases. I mean, it’s a real barnburner of a term. And usually the model I guess, has been sort of I don’t know if it’s a model per se, but there’s been a kind of ebb and flow, a sort of oscillation to this on the court, like a really big term is followed by something of a quieter term where they kind of recalibrate and level set again, but not this year. And I think that’s worth mentioning. This court continues to put its foot on the pedal like we are continuing to pursue this and there’s no letup and that’s why we’re not letting up.


Leah Litman Yeah, I mean, that’s why we call it the YOLO Court, like they are really committed to and intent on broadly refashioning the law as they see fit.


Melissa Murray Legend status unlocked.


Leah Litman Yes, right. And those are just the cases that have already been argued. You know, the court has two additional argument sessions coming up and, you know, included in the cases that it’s going to hear are going to be a case about basically. The extent to which the government can prosecute threats and whether the First Amendment or the extent to which the First Amendment limit their ability to do so, this could have major ramifications for, among other things, like domestic violence cases and issues of gender violence. They are also hearing a super important case about the federal government’s obligation to secure water rights to tribes and native nations. That’s Arizona versus Navajo Nation. They’re also hearing a case about employers obligations to accommodate employees with religious beliefs that are at odds with the obligations of their employment. That’s growth versus joy. And again, like these are huge issues that will really affect people’s lives and the direction of this court in the country.


Melissa Murray Okay. So the court isn’t hearing oral arguments this week. So we will be back and they will be back next week previewing the cases that they’re going to hear. But in between now and then, we have a very special episode of strict scrutiny. And we are so delighted to bring you this conversation with Joanna Schwartz, the author of Shielded How the Police Became Untouchable. And again, the book is fantastic. It is compulsively readable. As Kate will tell you in this episode, you should consume it in whatever form you can. It’s absolutely fantastic. So buckle up, listeners. This is going to be a rollicking ride.


Leah Litman [AD]


Melissa Murray Welcome back to Strict Scrutiny. I’m Melissa Murray.


Kate Shaw And I’m Kate Shaw.


Melissa Murray And this is a very special episode of your podcast about the Supreme Court and the legal culture that surrounds it, because we are actually talking about a really important part of legal culture.


Kate Shaw And for that conversation, we are delighted to be joined by Professor Joanna Schwartz. Joanna is a professor of law at UCLA School of Law. She teaches civil procedure and a variety of courses on police accountability and public interest lawyering. She is a recipient of UCLA’s Distinguished Teaching Award and a previous vice dean for faculty development.


Melissa Murray And in addition to all of that, Joanna is one of the country’s leading experts on civil procedure and police misconduct litigation. And the author of the indispensable new book Shielded: How the Police Became Untouchable. So welcome to the pod, Joanna.


Joanna Schwartz Thank you so much for having me.


Kate Shaw So let’s dive right in because there is so much to talk about. And before getting into the book’s subject matter, we actually want to start by asking you to talk a bit, Joanna, about your background. So you came to the subject as a scholar after first working for years as a civil rights litigator, and I kind of wanted to ask you to talk about how that background, which you do talk about at various points in the book, inform your work as a scholar kind of in general. And in this book in particular?


Joanna Schwartz Absolutely. My experience as a civil rights litigator in New York in the early 2000’s at a small firm that was then called Emory Chelley Cuddy Brinckerhoff and Abadie was a really critically important steppingstone in my journey to the place that I am right now. And I was working on a lot of litigation against the New York Police Department, against the New York City Department of Corrections in their class actions against the city for unreasonable force at Rikers Island. And I got into this work because I optimistically believed that civil rights lawsuits would have a meaningful impact not only on the people that we represented, but on the broader system. And I still hold that belief to some degree. But things that I experienced as a civil rights lawyer made me question the most robust version of that kind of deterrence. And to take one example, when I was working on that class action against New York City Department of Corrections, we deposed a lot of corrections officers. And in preparing for those depositions, I would review the personnel files of those officers and was surprised to see no mention of any litigation history. When I actually questioned those officers under oath and asked them whether they’d been sued, some said yes, even though there was nothing in their personnel files. And then when I asked them to describe what those prior lawsuits were, they had no idea what they had been sued for. They had no idea whether the case was successful, no idea what the victims recovered. And because it was a class action, we were also deposing the higher ups, the immediate supervisors, the assistant wardens. And nobody knew anything about these lawsuits. How many lawsuits were filed against whom alleging what and what the outcomes were. And so when I joined UCLA Law School, one of the first questions I wanted to empirically examine was whether what was happening in New York, the fact that no one seemed to know anything about these lawsuits was just something unique, unique to New York, or whether this was a practice that was broader. And each time I asked an empirical question about the realities of civil rights litigation, another two or three questions were begged by that research. So I’ve really spent the past 15 years researching topics that germinated from my practice experience.


Melissa Murray There have been so many different accounts of police violence over the last couple of years. Men who have become household names by virtue of becoming victims of police violence like George Floyd, Eric Garner. But you begin your book with the story of Andre Norris, who is not a household name, but who is Andre Norris. And can you explain why you chose to start your story and the story of this book with his story?


Joanna Schwartz Andre Norris is an elderly black man who lives in Atlanta or the outskirts of Atlanta. He’s lived there for more than 50 years. He spent his life working at a rock quarry, raising his family. He’s never had any trouble at all with the law. And one evening he was sitting in his room listening to the evening news when a group of armed officers came into his house, threw him to the ground, and they were there because they were executing a warrant on the house next door, a house that looked nothing like his home. But they got the two houses confused and ended up assaulting him and. He starts the book because his story is very compelling and also because his story is one that people haven’t heard of before. This book is about protections that the Supreme Court and state and local governments have created for victims of misconduct that make it very difficult for them to seek justice in these cases. But those protections have their strongest power in cases about which you haven’t heard. When George Floyd was murdered, when Breonna Taylor was killed, there were swift settlements of multimillion dollars. And the people that you know, whose names you’ve heard often get swift settlements without having to overcome any of these shields. The shields are most effective at preventing people from getting relief in cases that don’t have that same political salience and public attention.


Kate Shaw The book is so incredibly effective at telling those human stories like on resources. And it’s amazing both like the depressing sameness of a lot of these narratives and also, you know, the completely distinct features of each of the scenarios in which these horrifying acts of police violence just occur to individuals who are mostly coming home or in their cars or have themselves called the police, and then in an instant, their lives are forever changed. So it’s really beautifully told throughout the book. And, you know, as you said, some of these stories are individuals who are not well known and then some are either individuals who are well known or the cases that bear their names are well known. So we thought we would just maybe pick out like one or two others and then sort of go deeper on some of the themes that you surface throughout the book. Could you tell us a little bit about Tony Timpa and his mother Vicki Timpa?


Joanna Schwartz Sure. This is a case that, along with all of the cases, are cases that really are difficult for me to forget and haunted me. Every case had to haunt me, at least for several days, to make it in this book. And this is one of them. Vicki Timpa got a call from the Dallas Police Department one August evening and with the news that her son had died and her son Tony, was a white, wealthy executive engaged to be married with an eight year old son who had never really had much trouble with the police besides a DUI. And she was desperate to find out what had happened to her son. The Dallas police officials that she spoke to would not tell her. They wouldn’t give her the most basic information about which officers were on the scene. They told her conflicting stories about what had happened. She tried to file requests with Dallas to get that information. Each of those requests were denied. So she ended up finding a lawyer willing to represent her and filed a lawsuit naming the city of Dallas and John Doe officers because she didn’t have that most basic information about who the officers were on the scene. When the city of Dallas got that lawsuit. They moved to dismiss the case because they said there were not enough facts in the complaint to establish a plausible entitlement to relief, which is a standard the Supreme Court has created. And they said that even though they had in their own possession video from body cameras and internal reports that identified exactly who was on the scene and precisely what had happened. Luckily for Vicki Timpa, before the court decided that motion to dismiss her lawyer filed a separate lawsuit seeking that information and was able to negotiate a settlement with the city of Dallas. That meant that the city did turn over their video to the lawyer and his temper, and she could see finally what happened to her son. What had happened was that Tony was having a mental health crisis. Dallas police were called to the scene, but instead of rendering him aid, they put their knees on his back and neck for over 14 minutes until he died. And as they were doing so, they were laughing and joking amongst themselves.


Melissa Murray That’s the same thing that happened with George Floyd. I mean, so there are some real weird commonalities here. Like, the procedure itself is something that seems to be relatively common and dangerous.


Joanna Schwartz Absolutely. And in fact, the Dallas Police Department had trained its officers not to do that. There’s a recognition that people placed in a prone position with that kind of weight on their backs can be fatal and had been instructed not to keep people in that position. But they did so anyway. And the parallel to George Floyd is apparent, given my description. The other. Walkable connection to George Floyd is that six or seven weeks after George Floyd was murdered? The trial court in Vicki Timpa case dismissed her case on qualified immunity grounds, holding that even if she could show a constitutional violation, there wasn’t a prior court decision with similar enough facts to clearly establish that what they had done, putting their knees on their on his neck and back for 14 minutes was unconstitutional. There’s been more developments in the case. A few years later, the court of Appeals, the Fifth Circuit, actually reversed the grant of qualified immunity, and they are back waiting for trial to begin. It was supposed to begin in March. It’s now supposed to begin in July. I believe and I actually spoke to Vicki Timpa about a week after the book was published, and she commented on how meaningful it was to her that the book was published on Valentine’s Day because she sees this as a tribute to her son and she is continuing to fight for justice in the courts for him. But think of all that she has had to go through to get to this point.


Melissa Murray That’s another aspect of this dynamic that you explore really well in the book. You note and you mentioned it with regard to Vicki temper. You note that there are a lot of impediments to civil rights litigants who are bringing these claims in court, like they’re just a lot of obstacles that they have to overcome to prevail. And, you know, then if they prevail, after all of them are still the gantlet of qualified immunity that they have to run. But even getting there, there are all of these little procedural hurdles that they have to surmount and they’re not necessarily easy. And one of the things I think is such an unexpected pleasure of your book is that it presents a really lucid account of how civil procedure works. And we have a lot of one l strict scrutiny listeners in the audience, and I think they will be surprised to find in a story about police brutality and police violence that a starring character is civil procedure. So can you say a little bit more about those procedural hurdles and the way in which the Supreme Court’s civil procedure decisions have actually made it much harder for civil rights litigants to advance their claims?


Joanna Schwartz Absolutely. And I’ve mentioned one of those hurdles, which is the Supreme Court’s decisions in Twombly and then Iqbal that created this idea that pleadings have to be plausible in order to get past the motion to dismiss stage. And what the Supreme Court has interpreted that to mean is that a plaintiff who’s filing a lawsuit has to put forward facts that would show that they were entitled to relief before they get to discovery, where they might actually be able to unearth the facts that would support their claim. Someone like Andre Norris did not need the defendant’s documents in order to know what had happened to him. But someone like Vicki Timpa certainly does. She wasn’t there when her son died and she didn’t know who was there. And the combination of the Iqbal pleadings standard plus the standards in Texas law, which allowed Texas law enforcement agencies not to turn over this information when it’s being requested through public records, requests mean that she really was in danger of having her case dismissed. Had her lawyer not filed a separate lawsuit seeking that information. The other time that Iqbal and the pleading standards really come into play is when plaintiffs are trying to sue local governments. The standard for suing local governments requires proof of an unconstitutional policy or custom or practice. And that evidence of what the internal processes or trainings or prior misconduct allegations are against a local government is not going to be available to most plaintiffs until they get to discovery. So those are two kinds of cases that really concretely show the impact of the pleadings standard. The other area that comes out a bunch, particularly in the chapter on judges, is all the discretionary power that judges have to decide whether to allow discovery requests or to decide whether they’re burdensome and should be limited, to decide whether to allow experts to allow extra depositions to schedule the process of the. Litigation. And depending on judges dispositions, their views of these cases, those kinds of decisions can really make or break a case. And it’s virtually impossible to appeal those decisions. So whatever the district court judge says goes, and I think and hope that civil procedure students will particularly find illuminating that chapter on judges.


Kate Shaw Another thing that you alluded to when you were walking through Vicki Timpa’s efforts to just get her day in court was that her claim was initially dismissed on qualified immunity grounds. And this is obviously qualified immunity is something we have talked about before. On the podcast. We had Fred Smith do a great episode two summers ago about it. But this is a complicated concept. Not everyone is going to be familiar with it. So can you walk us through this is something you’ve written also a great deal about. So can you just walk us through qualified immunity and explain a bit more what you meant when you said, well, there was no case directly on point. And so at least at the first pass, her claim was dismissed because qualified immunity was granted.


Melissa Murray And I know you’re first going to tell us that qualified immunity, like all of the other rights that the Supreme Court has recognized, is definitely textually in the Constitution. It’s right there for sure.


Joanna Schwartz Your glasses just need a stronger prescription to be able to find it.


Melissa Murray Right next to the provision that says 12 year olds can have guns.


Joanna Schwartz Exactly. Exactly.


Melissa Murray Great. Cool.


Joanna Schwartz Yes. You know exactly where to find it. So the Supreme Court created qualified immunity out of thin air and they created it out of thin air.


Melissa Murray It’s almost like it’s Griswald.


Joanna Schwartz Exactly. You kids are familiar with things being created out of thin air, aren’t you?


Kate Shaw Some are fine, some are not.


Joanna Schwartz This falls into the not category as far as I’m concerned. They created in 1967. They basically imported it from Mississippi Common Law. And when they first created qualified immunity, they described it as a good faith defense. It actually was in a case where a group of black and white ministers were in the South, went to a segregated coffee shop in a bus terminal and were arrested. And then that law was later found to be unconstitutional. And the officers were granted qualified immunity because they had in good faith, followed this law that was later found to be unconstitutional. But today, qualified immunity has nothing to do with officers. Good faith officers could act in bad faith and still get qualified immunity. And the shift happened in 1982 when the Supreme Court said, we don’t want to have to depose officers, we don’t have to want to have to get into what their intentions are, Let’s focus instead on an objective standard, whether the law was clearly established. And since 1982, the Supreme Court has defined clearly established law in narrower and narrower and narrower terms. Some decisions by the Supreme Court have suggested that only the Supreme Court can clearly establish the law. But in addition, the court has very clearly said that the law has to be particularized to the facts of the case. It’s not enough to say that it is unconstitutional to use force against a person who is not resisting. You have to find a prior case in which similar force was used against a person who was expressing their non resistance in a similar way. And that is the standard that actually kicked on records this case out of court too, even though there was a prior court decision that said you cannot hold a person at gunpoint when you are executing a warrant on the wrong house. In that case, the problem was that that prior decision was not published, even though it was available to anyone who wanted to find it. It was not technically published. And so it was not binding on the court. In Toni Tampa’s case, Vicki Timpa’s case, the law was not clearly established in the eyes of the Fifth Circuit because even though it had been held unconstitutional to put force on someone’s neck and back when they were hogtied, meaning their hands were tied, their feet were tied and their hands and feet were tied together, Tony, Timpa had his hands in cuffs and his feet were tied, but there was not a connection between his hands and feet. And that is primarily the reason that the court said that the law was not clearly established.


Kate Shaw It’s just too Kafkaesque to be believed that the literally the lack of a one additional zip tie was enough to distinguish these two, even where the lawyer involved actually did have the good fortune to find another case that had been decided on the merits. Because, of course, this doctrine interacts with these extremely difficult to satisfy pleadings standards that you were just describing, so that many of these acts of misconduct never even yield a merits decision that might facilitate the next person’s ability to evade a qualified immunity assertion. And so there is this self-reinforcing quality to some of these really dangerous doctrines, and I feel like really comes through. As you kind of weave together the different stories that you’re telling.


Melissa Murray And the obstacles are sort of sedimentary, like they keep layering and layering on top of each other to, you know, essentially build a wall that.


Joanna Schwartz Or maybe a shield.


Melissa Murray Or a shield that prevents the litigants from seeking justice. You know, one point that you mention, which is, again, part of legal culture that people don’t really appreciate, is the notion that there aren’t enough lawyers to bring these claims. And I think a lot of our listeners will be surprised, especially those who are not lawyers, because it just seems like all you hear about, like everyone’s a lawyer, there’s so many people going to law school. All of these people are lawyers. But in fact, there is a massive dearth of civil rights lawyers, especially in certain parts of the country, as you note in the book. Most civil rights lawyers who take on these kinds of claims are located in these large urban centers that were sort of the heart of the Great Migration, like the destinations that African-Americans went to, Places where they were coming from, though, remain deserts for civil rights lawyers. So these are places in the south, in parts of the Midwest and the Southwest, where you will not find people who are in a position with the expertise to bring these kinds of cases more than that. The fee shifting requirements that the Supreme Court has put in place for recovering lawyers fees makes it almost impossible for lawyers who might be a medical to bringing these kinds of suits to actually get paid to do so. And so that presents a huge barrier to civil rights litigants. So can you talk about some of these dynamics, like how does the money factor into all of this in a profession where apparently lawyers are just flush with cash?


Joanna Schwartz Right. And you can argue about whether there’s too many or too few lawyers, but there’s I’m not.


Melissa Murray From the law school. Not enough.


Joanna Schwartz Always could be more.


Kate Shaw But definitely not enough of this type of lawyer.


Joanna Schwartz Exactly. There’s no question that there’s not enough lawyers. And it’s and it’s not only civil rights lawyers, it’s lawyers doing other poverty work around the country.


Melissa Murray This is a good place to plug. The work of the NAACP Legal Defense Fund is doing with their Marshall Motley’s Scholars, which is basically about seeding a cadre of civil rights lawyers who are going to go back and work in the South. So hats off to Janay Nelson and Sherrilyn Ifill for getting that launched.


Joanna Schwartz And they actually mentioned them in Chapter 13 of the book, because getting civil rights lawyers to the south who have expertise and commitment in civil rights litigation is crucial. I think it’s one of the absolutely most important first steps to take, because with experienced lawyers, then there can be stronger challenges to qualified immunity. And to all of these other barriers you need counsel. But the way in which attorney compensation is set up makes it difficult for lawyers to want to bring these cases. The option for lawyers typically in tort cases is a contingency fee arrangement, meaning you get some percentage, let’s say a third if you win, if you lose, you get nothing. And Congress recognized relatively early on that this was not a good set up for plaintiffs civil rights lawyers, because the goals are more than helping someone recover money for a slip and fall. This is maintaining and protecting constitutional rights that people have. And some of these claims involve low damages. Some of these claims involve people who juries may not find sympathetic either because they have a criminal history or because they’re homeless or because they have mental health challenges. So Congress wanted to set up a system where when a plaintiff won, their lawyer was paid by the local government as a way of protecting these rights. But the Supreme Court interpreted that statute, which is section 1988, in a way that took away much of its power. One of those decisions provides that when a defendant offers to settle, they can include a waiver of attorney’s fees as part of that settlement, meaning there’s essentially nothing that the plaintiff’s attorney can get except the cut of the winnings, which is just like the contingency fee system back as it was before. And most cases settle and most cases settle with this kind of contingency fee arrangement. So imagine a lawyer, not the lawyers who are coming through the NAACP fellowship, but a lawyer who is practicing outside Atlanta or in Des Moines, who is a personal injury attorney, or does some medical malpractice or maybe does some criminal defense and has someone come into their office who has suffered at the hands of police, finds the facts egregious, wants to bring the case files. The case doesn’t know much about qualified immunity, doesn’t know that when. Qualified immunity motion is denied. It can be immediately appealed. Doesn’t know about all of the other kinds of challenges facing civil rights plaintiffs. Spends a couple ten let’s say $10,000 worth of their time litigating the case and it’s thrown out on qualified immunity or one of these other barriers. That lawyer is very likely and I’ve talked to many of them to go back to their other line of work. And even lawyers who have worked on these cases for decades have told me that they are bringing more medical malpractice cases or dental malpractice cases because it at least ensures that they’re going to keep the lights on and they’re going to keep their paralegals paid. And so with that dynamic, you can understand why there’s not lawyers who are bringing these cases regularly with expertise outside of the large cities.


Melissa Murray So the bars are ratcheted up for litigants to bring these cases. And then the bars are also ratcheted up for lawyers who will not bring the cases unless they can be assured of success. And that’s increasingly difficult given the legal landscape.


Joanna Schwartz Exactly.


Kate Shaw And you just, again, have so many examples of this. I was just looking back through the chapter about Alonzo Grant in Syracuse, who has an incredibly strong case, it seems, based on having been brutalized by some police officers who came into his home after a call was made. And he ends up finding a civil rights lawyer in California. Right. Who at enormous personal expense and over the course of many years does manage to get a measure of justice for grant. But after getting what actually is one of the few good outcomes in terms of an award, both for Grant and for the attorney, that’s then cut down later in the process. So we say a little bit more about about what happened there.


Joanna Schwartz Absolutely. And there’s two interesting points. The fact that this family in Syracuse, New York, had to use an attorney in the Bay Area may seem surprising given that New York City is far closer than than San Francisco. But lawyers practicing in New York City, if you think about the cost benefit analysis for them, they have plenty of work to keep them busy in New York. And getting up to Syracuse is 8 hours round trip. So why spend that extra time when he told his friend, who was a criminal defense attorney, that he needed help? That defense attorney who had done criminal work knew that the Syracuse Police Department had problems, but he had never sued the Syracuse Police Department and knew no one in the area who had and who had success. So he did find this lawyer who he had known through a prior case who ended up working on this case for years, Charles Bonner. And they did win. Alonzo Grant and his wife Stephanie, won a very impressive victory against the Syracuse Police Department after the legal team won at trial. And they were entitled to their fees under section 1988. The court then took a fine tooth comb to their fee application, reduced the number of hours that they should have spent, reduced their hourly rate. So it was the Syracuse rate and ultimately they were awarded just over one third of the time and expense that they put into that case. And they’ve continued to bring cases in Syracuse. But you wouldn’t blame them for not doing so given how much time and energy they’re putting into these cases and the fact that they’re getting pennies on the pennies on the dime at least.


Leah Litman [AD]


Melissa Murray So, Joanna, there’s another dynamic that you explore here that you’ve also explored in some of your other scholarship in your law review articles. And this is sort of the assumption that when there is a judgment against police officers for their misconduct, that the police officers actually wind up paying. And this sort of assumption is thwarted through the courts qualified immunity jurisprudence, where the court often expresses real concern that any kind of judgment against the police officers in the absence of qualified immunity is going to lead to the bankrupting of the officer in question. And that will have massive deterrent effects on those seeking to become police officers or those who are already police officers and on the force. And so you’ve investigated this. And actually this assumption seems to be something of a legal fiction. So can you say who is actually paying these judgments and settlements when they are reached or when they are issued against the police officers?


Joanna Schwartz Local governments are paying and insurers are paying, Police officers are not paying. And the reason for that shield has nothing to do with qualified immunity at all. It is instead indemnification agreements, some of which are a product of state law, some of which are negotiated with unions and other law enforcement officials as a matter of local law or policy. But what they provide is that when an officer is sued, they’re given an attorney and any settlement or judgment is paid by the jurisdiction or their insurer. And when I looked at 81 jurisdictions across the country, large, medium and small, over a six year period, I found that 99.98% of the dollars were paid by insurers and local governments. .02 percent of the dollars were paid by officers in two jurisdictions, Cleveland and New York City. But even in those places, officers paid an average of $4,000 in the rare event that they were required to contribute. So this is not the stuff of bankruptcy petitions. And it’s worth noting that these indemnification protections are not airtight. Local governments have discretion to deny officers indemnification, but they often don’t, even when officers have been disciplined, terminated, criminally prosecuted, even when punitive damages have been awarded. And in the rare events that officers are denied indemnification, they end up not paying anyway because of a different dynamic, which is that those officers are judgment proof. And so plaintiffs and their lawyers end up negotiating a settlement with the government proceeding with claims against a different officer or throwing up their hands and not pursuing the claim at all. But through that complex set of dynamics and protections, having nothing to do with qualified immunity, officers are not, as a practical matter, as a matter of of reality, being threatened with bankruptcy by these cases.


Kate Shaw Yeah, and it is just wild that the court has predicated much of what it has done in the qualified immunity space, at least in part on that understanding, which just seems like a basic factual misunderstanding that goes to the core of how this actually works on the ground. And it just feels like one of many examples that I feel like we’ve talked about on the podcast of the court acting. It’s such a disconnect and removed from both facts and reality that it just kind of boggles the mind. So I thought that was incredibly illuminating in the book.


Melissa Murray It reminds me a lot of Justice Alito’s concurrence in Bruen and his discussion of the oral arguments in Bruen only sort of poor working class stiffs who are in jeopardy when they get on the New York City subway late at night. I mean, like there’s a similar kind of dynamic going on when the court talks about police officers like, you know, sort of blue collar heroes who are like the legal system is like sort of the.


Kate Shaw They’re a victim of sorts.


Melissa Murray Yeah.


Kate Shaw I think that’s right. That is the kind of image, I think, in the court’s mind. And it’s just wildly inconsistent with, you know, dynamics and reality on the ground and maybe to take another beat on this. So it is primarily governments that are paying these judgments if in fact they occur. I kind of want to be careful about how we talk about it, because I don’t want to give the impression that there is just tons of money just sort of sloshing around inside governmental coffers and just, you know, landing in the hands of plaintiffs. I think the book is incredibly clear in illustrating how wrong that characterization or portrait is. But there are payments that are made and there’s some really striking data in the book about both the litigation behavior by some of these municipalities. My hometown of Chicago is probably the worst offender, I would say, in this regard, spending just hundreds, if not more, lawyer hours in dragging out rather than offer. Reasonable settlements in cases involving the most egregious sorts of police misconduct. But in the aggregate, these numbers are really quite enormous, which again, not remotely commensurate with the scope of the misconduct. But this is this is real money. Even if most people are going uncompensated when they were victimized. And you talk about what isn’t done and money that isn’t spent on pressing needs that residents in cities have because there is so much being spent out to compensate for, but not actually reform police misconduct. So we say a little bit about those dynamics.


Joanna Schwartz Absolutely. When you look at how much is being spent in police misconduct lawsuits, the numbers can sound pretty shocking, particularly in cities like New York and Chicago, although important to note that those payouts are less than 1% of the dollars that are part of the of the city’s budget. And side note, law enforcement agencies in these cities eat up a quarter to a third of the city’s budget. So it’s all in comparison. But it’s true. People sometimes look at these payouts and say, what else could have been spent on this money? Community centers, libraries, etc.. Some people use those arguments to say that there should be less police misconduct. Other people use those arguments to say there should be less litigation. But the ways in which the money is budgeted for and paid makes the deterrent effect of these suits on departments really muted and, as you say, can have these really awful residual effects. And to take your fair city of Chicago, the Chicago budget does something kind of unusual, which is in the budgeting process. The city gives the police department its own litigation budget. And the idea is, I think in theory that the police department pays settlements and judgments from their budgets. And if they went over budget, you might think they would have to take money from overtime or grenades or whatever else they might spend that money on. Well, the way that it actually works in Chicago is that when the department goes over its litigation budget, they go back to the city council, and the city council then takes the money from elsewhere in the central budget. And I spoke to an attorney who used to work for the city in these cases defending officers. And he said when settlements went up in the police department, lead paint testing went down because they took the extra money from crevices of the city budget that were aimed at helping the most vulnerable, the least politically powerful, and not to mention the people who are most likely to be abused by the police. So it’s a really frustrating system to think about the ways in which these lawsuits are budgeted for and paid. And there’s additionally waste to the city in the way that they fund attorneys defending these officers. Chicago, it was recently reported, spent $40 million last year on outside counsel, not even the city’s attorneys, but on lawyers who are paid by the hour to represent some officers. And what I describe in the book are scorched earth litigation tactics often used by these private attorneys who are being paid by the hour and have strong incentives to churn cases and end up spending sometimes millions of dollars in attorneys fees in cases that could have been settled early on, probably for less than the ultimate judgments in these cases. And all this does is increase that bill for these lawsuits. And as we know about Chicago, what’s that’s going to end up meaning is more money that’s taken from these crevices of the city’s budget.


Kate Shaw And it’s all ultimately taxpayer money anyway. Right? This is money that that should be going to other programs. And instead it is lining the pockets of private firms that are dragging out disputes, not offering reasonable settlements. It was just one of many infuriating chapters.


Joanna Schwartz One of many.


Kate Shaw Is you’re describing a constellation of dynamics that act to shield misconduct by police officers. A lot of this a lot of the underlying events are isolated police encounters. Right. They might take a few minutes or a few seconds. But there are also places in the book where you talk about the way in which these systems also collude to protect, you know, even where this is not isolated or fleeting conduct. So, you know, it may be the case that there is a single officer or officers who victimize a lot of different individuals and as you said, really, really shoddy record keeping such that it’s not even clear that super. Advisors are tracking or aware of the kind of repeated misconduct that officers are engaging in. There is even a story that you tell in the book about an officer fixating on and repeatedly targeting a single individual, and that is what happened in the case of Clay Tiffany, who was a resident of Briarcliff Manor, who I think you actually represented. And this is a story with unique facts, to be sure, but it is a fascinating one. And I wanted to give you a chance to talk about it now.


Joanna Schwartz Clay Tiffany was one of my clients when I worked at this small civil rights firm in New York, and he was a tremendous character. He was this tall, white guy with like a big mop of red curly hair. He described himself as an independent journalist. He had a public access television show back in the day when that was the kind of thing people did called Dirge for the Charlatans. And he would investigate corruption around his hometown and the and the state of New York more generally in West Westchester, and then report about all of that misconduct that he had found on his show. And he came into an interaction with an officer at Briarcliff Manor named Nick Tartaglione, who was a bad, bad guy. We’ve later discovered exactly how bad he was. But at the time, Clay Tiffany had a traffic stop with Tartaglione. Tartaglione threatened him. Then Clay turned his attention on Tartaglione found out that he’d moved around a bunch of different small law enforcement agencies in the area, had all sorts of information about him and started reporting about Tartaglione on his television show. Then Tartaglione had three more interactions with Tiffany, assaulting him worse and worse each time. The final time he kicked him, pepper sprayed him, and said, You can’t tell lies about me on your television show. It was a remarkable case for so many reasons, one of which was that he would keep this small cassette recorder in his pocket and record him putting all of the government officials in this little town of Briarcliff Manor on notice that this cop was a bad guy. I mentioned him in the book. I knew I had to have Clay in this book somewhere. He’s actually the first person that asked where the money came from. When officers offer settlements and judgments in these cases because Tartaglione had been fired while our lawsuit was going on. But during the litigation, he ended up getting his job back with about $300,000 in back pay. And soon after that, he offered Clay $200,000 in a settlement. And as was reflected in letters that we wrote to the judge and to opposing counsel, Clay wanted to know where that money was coming from. I had assumed it was Tartaglione, given that they’d fired him. It later turned out that it was the village’s insurer that paid that settlement. And that’s the reason, Clay is the reason that I started down the path of doing this indemnification research. The Coda on Tartaglione and Clay Tiffany, Clay, Tiffany passed away a few years ago, and soon after he passed away, Nick Tartaglione was arrested for killing four men in a drug deal gone wrong, and he is awaiting trial on federal charges, including murder. So as I say in the book, Clay Tiffany was right about Tartaglione and he was also right to want to know where the money came from.


Kate Shaw Yeah. So, look, obviously, those are extreme facts. He is now awaiting trial on multiple murder charges. But the fact that he was protected like any other police officer along the way by the government and by its insurer, and the fact that your clients questions that you on this path, I think actually does mean it’s very appropriate to include in the larger book. But that’s what I said at the beginning about the kind of there’s a distinctness and a uniqueness to each of the stories that you tell in the book, and that’s part of what is so powerful about it. Thank you.


Melissa Murray Well, what is it that Leah says? “Don’t let facts get in the way of a good time at the Supreme Court”, right?


Kate Shaw Yes.


Melissa Murray Do not. All right. So, Joanna, we don’t want this to be a complete downer of an episode. So we should note that you highlight some glimmers of hope in your account here. So one of the things you observe is that the death of George Floyd in 2020 and the resulting criticism of qualified immunity, the sort of surprising, resulting criticism of qualified immunity, foregrounded some of the developments that we are now seeing in the Court’s qualified immunity jurisprudence. So can you explain some of these developments? And do you think they signal a sea change in the. Courts approach to qualified immunity and may be stepping back. Are these developments directly responsive in some way to what is happening on the ground and the critiques that we are seeing in the wake of these really politically salient moments?


Joanna Schwartz The Supreme Court has definitely taken the opportunity to take a tiny step back on qualified immunity. I think it probably is a response to widespread criticism of the doctrine not just by academics and advocates, but by people in protests following George Floyd’s murder, who are raising signs saying end qualified immunity. The small shift by the court, I think, started in 2017 when Clarence Thomas said in a concurrence in a decision that the Supreme Court should reconsider qualified immunity, not because he was concerned about the kinds of misconduct that we’ve been talking about, but because the defense has nothing to do with what existed in 1871 when Congress created the right to sue .


Melissa Murray Kel suprise! Qualified immunity is terrible that because people are dying, but because it’s not really originalist.


Joanna Schwartz But you know what? Advocates will take what they can.


Kate Shaw Whatever. Yeah yeah yeah. That’s right.


Joanna Schwartz Take what they can get.


Melissa Murray We’re we’re so starved at this moment that we’re like, that sounds great. We’ll take it.


Joanna Schwartz And that led people on the left and on the right to start bringing all of these petitions and amicus briefs, trying to get the court to reconsider qualified immunity. They at the time that George Floyd was murdered in May of 2020, there were something like a dozen pending petitions. And the optimists, myself included, thought cheerily that maybe that would be the moment that the court would reconsider qualified immunity.


Kate Shaw And they were relisting petitions for a while.


Joanna Schwartz Yes!


Kate Shaw So it did seem as though they at least were thinking about it.


Joanna Schwartz I think they were thinking about.


Melissa Murray Let me interject and you two, Pollyannas. So let me interject here. So this is not to absolve the court of responsibility to respond here. But one of the things we did know during that period when they were relisting petitions is that Congress was also talking about taking steps. Absolutely. There are multiple constitutional actors in play here. And one of the things we sort of floated was maybe the court’s more tentative approach to qualified immunity was in anticipation of some broader, more systemic and seismic shift that Congress was going to put forward. But here’s the thing Congress did not.


Joanna Schwartz Correct, and you might have heard me through the airwaves agreeing with you while you were saying that at the time. But no, Congress didn’t act. And then in November of 2020, as Congress, what didn’t seem to be doing anything, the court did issue this decision in Taylor versus Riojas, which is another horrendous case where a prisoner from Texas was being held in deplorable conditions for days after days, and the Supreme Court said any corrections officer should know that what they were doing was violating the Constitution, meaning you don’t need to find a prior case on point. And then in one other decision called McCoy, the Supreme Court cited Taylor and without an opinion, just said reversed in light of the optimist’s in the room. Again, maybe thought that this was a sign of a shift.


Melissa Murray You crazy ladies.


Joanna Schwartz I know. I’m like Charlie Brown with the football.


Melissa Murray You are.


Joanna Schwartz Just again and again and again.


Melissa Murray Clarence Thomas is Lucy.


Joanna Schwartz But nothing has happened since. However, I think that there are shifts. You can take this all with a grain of salt of now that you know that I’m a sunny eyed optimist. But there are shifts in the lower courts. Lower courts hate qualified immunity. Not all of them, but there’s a lot of criticism. And even though district courts and courts of appeals don’t have the power to do away with qualified immunity, they certainly have the power to interpret qualified immunity. And there’s all sorts of holes that the Supreme Court has left open for lower courts to fill. And there’s a lot of interesting stuff going on at the state level. State legislatures are enacting and not a lot of state legislatures, but it’s a work in progress. Some state legislatures are enacting state rights to sue for violations of the state constitution, and providing that qualified immunity is not a defense to those claims. And in places that have enacted that kind of right to sue Colorado, New Mexico, New York City, the sky has not fallen. There are not frivolous cases flooding the courthouses and officers being bankrupted. And there is efforts to pass that kind of legislation in other parts of the country as well. So I do think that there is a softening of qualified immunity, but it’s not everywhere. And it’s it’s a slow process.


Kate Shaw But it’s helpful to hear that even if it feels like that Supreme Court’s big reconsideration is not in the offing. It matters an enormous amount what the court sends by way of signals to the lower courts just in terms of their enthusiasm for the doctrine or their. Slight pulling back. And of course, this is something that your sometime coauthor and my wonderful Cardozo colleague, Alex Reinhardt, has studied. But as we try to come back to occasionally, we are Supreme Court podcast. But it is one of many institutions and it is not the only institution and the dynamics that you were describing this book, many of them emanate from decisions of the Supreme Court, but you know, they have a life beyond that. We’ve talked a little bit about the importance of large scale seeding, of cadres of civil rights, lawyers in civil rights deserts, which are, you know, very prevalent in the country right now, the possibility of state legislative reform. Are there other places that people need to be focusing their attention? Are there other places where you’re seeing glimmers of optimism or seeds of change? It doesn’t need to be an optimistic note. But in terms of apart from read your book, which our listeners should do, what are some action items.


Melissa Murray Also, I think one of the things that we’ve seen in the wake of George Floyd and these, you know, horrible episodes of police violence is everyone sort of focuses on qualified immunity. But as your book shows, that’s only part of the problem. The problem is actually really systemic and it spans all of these different points in the process, like this is a procedural problem with substantive consequences. And so how do we get it that if the problem isn’t just qualified immunity? How do we deal with what the actual problem is now that we understand how sweeping its scope is?


Joanna Schwartz Yeah. So the bright side of there being so many problems is there sort of nowhere to go but up from where we are and there are.


Melissa Murray So Pollyanas, oh my God, everything is terrible. There’s so many opportunities. I love it. I love this. I love. Where are you, Leah? Leah I’m blinking. The safe word is come and get me.


Joanna Schwartz Look at you wanted optimism. You wanted a glimmer of hope? I’m putting a little light beam on it.


Kate Shaw Its so its so awful. What else can you do?


Joanna Schwartz But I also think it’s important to say there’s a lot of after Tyre Nichols, the response with Beyond Horror was that I often heard nothing has changed. It’s not true that nothing has changed. People are still going to be murdered by the police. We are. We are. I don’t think we’re going to get to a system in which they’re not. And that’s a separate conversation about what it means to give people weapons and lots and lots of authority and very little in the way of oversight. But I think that there are changes that are happening in the immediate aftermath of Tyre Nichols killing. The video was released immediately. The Scorpion unit was closed down. And I understand that many of those officers were just moved. And we’ve long known about the problems with these kinds of elite units. The officers were fired, the officers were prosecuted. And if you look back to your city of Chicago, when you know there was a killing of a man named Laquan McDonald, where it took a year to get the video and there was a massive cover up of what had happened. So I’m not saying that we should be celebrating where we are right now, but I do think that there are important shifts. I think that there is interesting and important work that local governments beyond the state legislatures, that local governments are doing to limit traffic stops. That’s something that Philadelphia is putting into place, that Memphis is considering putting into place these kinds of shifts to have unarmed people responding to people in mental health crisis. I think that is important. And those are those are end runs around the Supreme Court’s Fourth Amendment jurisprudence.


Melissa Murray Can I. So maybe the elephant in the room that we are not stating is like, is there room in this conversation for abolition? You at what point are the problem so numerous and perhaps so intractable? You guys are being real optimists. Like there’s there’s room to improve, but there’s just so many problems like is part of the issue here that. The whole system is sort of rotting from the inside. And maybe it’s we just don’t need to have this system. I mean, the questions about defund the police are not simply about qualified immunity, but about dismantling the entire system. I mean, is that a conversation that needs to be on the table or is that a bridge too far?


Joanna Schwartz Well, I think qualified immunity and defund have almost nothing to do with one another. Even though they’re inflated. They are conflated publicly, publicly. And and I think it’s really important not to conflate them. One is looking at front end law enforcement and one is looking at accountability when officers cross the line. If there were no police or fewer police, fewer police interactions, there might be fewer lawsuits and fewer need for qualified immunity. I am, in addition to being an optimist, an incrementalist, and I do think that it is important to take steps and steps lead to other steps. I think that limiting traffic stops, for example, is something and and having unarmed people respond to people in mental health crisis.


Melissa Murray Limiting the range of opportunities that people have for contact with the police.


Joanna Schwartz Those are kinds of policy shifts that are consistent with a defund approach, not going the full way to abolition. There are also policy adjustments that, at least in a recent time law enforcement officials agreed with. Law enforcement officials have said they don’t want to be the ones who are responding to mental health crises. There’s there’s long been a concern that police are being asked to do too much. And so I do think that there is a place to find some common ground there when you move incrementally. And as I said, I think steps lead to more steps. But you can just tell me that I’m an optimistic incrementalist.


Melissa Murray I think it’s a conversation we’re having. It’s certainly a conversation our students are having. And, you know, a lot of people come at it from different perspectives. You know, some argue that abolition is the only thing that will strip this system of the racial bias that appears to be baked in from the inside. But then there are members of minority communities who argue we actually want and perhaps even need some kind of law enforcement presence. We just want it to be less punitive and more ameliorative than it has been and more supportive. So, you know, it’s not about, I think, accepting one or the other uncritically. But, you know, this conversation has been so layered. The book is so nuanced in the way it tells its story. And it seems like that question of abolition is lurking out there. And this was perhaps our attempt to kind of bring it in and, you know, bring it full circle. But the book is massive and sweeping, and every person who thinks about policing the criminal justice system and civil rights litigation, I think has to reckon with what we’ve talked about here. I mean, it’s just absolutely amazing.


Kate Shaw Joanna Schwartz, thank you so much for taking the time to join us today. It was great to have you on the podcast.


Joanna Schwartz Thank you so much for having me.


Kate Shaw The book once again is Shielded: How the Police Became Untouchable. Available on Anywhere you buy your books. It’s also available as an e-book and an audiobook read by the author. So check it out. [AD] Strict Scrutiny is a Crooked Media production. Hosted and executive produced by Leah Litman. Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production Support from Ashley Mizuho, Michael Martinez, Sandy Girard and Ari Schwartz with digital support from Amelia Montooth. We will see you next time.


Kate Shaw So pick up a copy of this book and take it in. Ingest it however you choose to consume your book content Strict Scrutiny.


Kate Shaw Put it in your veins. Snort it. I don’t know. Oh my God.


Joanna Schwartz I wish I’d had that to put on my cover.